(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
(1A) While an order made under clause (1) mentioning any of the rights conferred by Part III (except articles 20 and 21) is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:
Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.
(1B) Nothing in clause (1A) shall apply —
(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital.(
(2) An order made as aforesaid may extend to the whole or any part of the territory of India:
Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation, considers such extension to be necessary.
(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.
Draft Article 280, Draft Constitution of India, 1948
Where a Proclamation of Emergency is in operation, the President may by order declare that the rights guaranteed by article 25 of this Constitution shall remain suspended for such period not extending beyond a period of six months after the proclamation has ceased to be in operation as may be specified in such order.
Draft Article 280 (Article 359 of the Constitution of India, 1950) was discussed in the Constituent Assembly on 4 and 20 August 1949. Under Draft Article 25, Indians could approach courts for a remedy when their fundamental rights were violated. Draft Article 280 gave the President the power to suspend this provision during an emergency for a period of six months.
During the debate the Drafting Committee Chairman introduced an amendment that limited the suspension of fundamental rights to only a part of the country and required parliamentary approval of the President’s order.
The amendment did not have any effect on the general tenor of the debate which was hostile to the Draft Article. Members feared that it promoted the abuse of power by the executive, undermined protections for citizens against arbitrary state action and did not contain sufficient safeguards against its misuse. One Member was particularly concerned that the Draft Article took away Habeas Corpus — a writ available even during colonial rule; He proposed an amendment that protected the writ. A group of members reluctantly said that if such a power must exist, then it should be exercised by parliament and not the executive.
A small set of members came in support of the Draft Article and argued that these powers were necessary to ensure that the State could maintain people’s freedom. A Member of the Drafting Committee invoked a saying ‘war cannot be fought on principles of the Magna Carta’. He reminded the house that these powers were critical to preserve the existence of the State. After all, it was the State which guaranteed freedom in the first place.
Despite strong opposition, the Drafting Committee Chairman remained unconvinced and defended the Draft Article. He argued that there was a universal agreement that fundamental rights are not absolute, there was only disagreement regarding ways of curtailing them. He said that there were enough safeguards within the Article to ensure that the President did not misuse his/her power. The President could not issue an order in his/her personal capacity – he would be guided by the executive which in turn was drawn from and accountable to Parliament.
On 20 August 1949, Draft Article 280 as amended by the Drafting Committee Chairman was adopted as part of the constitution and the rest of the amendments were rejected.